By Otto Spijkers
Otto Spijkers is Professor at the China Institute of Boundary and Ocean Studies (CIBOS) and Research Institute of Environmental Law (RIEL) of Wuhan University. He can be contacted at firstname.lastname@example.org.
On the 6th of June 2016, the Republic of Chile (‘Chile’) initiated a case against the Plurinational State of Bolivia (‘Bolivia’), before the International Court of Justice (‘Court’ or ‘ICJ’), requesting the Court to confirm that the use of the Silala is governed by general principles of international water law, as developed in customary international law and partly codified in the Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention). This convention was opened for signature on 21 May 1997 and entered into force 17 August 2014. It currently has 37 Parties, not including either Bolivia or Chile.
Provided the Court accepts – in this currently pending litigation where oral hearings are taking place at the time this post was written, i.e. April of 2022 – that the use of the Silala is indeed governed by these general principles of customary international water law, then Chile requests the Court to confirm that it has been acting in compliance with these general principles, but that Bolivia has acted in breach of them. The most important substantive principles of international water law are firstly the principle of equitable and reasonable utilization and secondly the obligation not to cause significant transboundary harm. These substantive principles are complemented by procedural principles that all have something to do with transboundary cooperation – such as the duty to consult, inform, and share information.
The dispute currently pending before the ICJ is framed as a dispute between two neighbouring states: Chile and Bolivia. This is because the Court’s contentious jurisdiction is limited to deciding disputes of a legal nature between states, in accordance with international law. These proceedings at the ICJ thereby only reinforce the impression that this is a classic inter-state controversy. In this inter-state frame, the rights of individual people in the governance of the Silala do not receive the attention they deserve.
One might point out that rights and interests of people living close to the Silala waters are best regulated and adjudicated at the national level, and that they are beyond the reach of international law. However, the proper use and management of the Silala, no matter how tiny the Silala might be, does concern people residing on both sides of the border, and these people relate to each other in various transboundary ways. It therefore cannot be left to the Chilean and Bolivian jurisdictions, operating in isolation, to accommodate these local rights and interests, and settle these local controversies. No matter the outcome of the inter-state dispute before the ICJ, this blog post calls for a recognition by the two states of the participatory rights in the governance of the Silala enjoyed by local individuals.
The key question I wish to address in what follows is whether a right for local individuals to participate in the freshwater governance of the Silala can be derived from international human rights law, the human right to water in particular.
The human right to water is not explicitly mentioned in any of the international human rights covenants, may nevertheless be derived inter alia from the human right to an adequate standard of living, included in Article 11.1 of the International Covenant on Economic, Social and Cultural Rights. Chile ratified this treaty in 1972 – even before its entry into force; while Bolivia acceded to it in 1982 – shortly after, making them both parties to the treaty. In its General Comment No. 15 on the Right to Water of 20 January 2003 (page 2, paragraph 3). the Committee on Economic, Social and Cultural Rights (‘Committee’) confirmed that the right to water can be based on established human rights, most importantly the human right to an adequate standard of living.
Under the international human right to water, individuals are entitled to participate in decision-making processes relating to freshwater resources they rely on to enjoy that right. General Comment 15 contains quite detailed instructions on participatory rights in relation to the human right to water. In the view of the Committee,
The formulation and implementation of national water strategies and plans of action should respect, inter alia, the principles of non-discrimination and people’s participation. The right of individuals and groups to participate in decision-making processes that may affect their exercise of the right to water must be an integral part of any policy, program or strategy concerning water. Individuals and groups should be given full and equal access to information concerning water, water services and the environment, held by public authorities or third parties.
In the view of the Committee, everyone within the jurisdiction of the state, without discrimination based on nationality, has the “right to seek, receive and impart information concerning water issues” (12(c)(iv)).
This raises the question of which individuals fall within the jurisdiction of Chile and/or Bolivia. All individuals situated within the territory of a state automatically fall within that state’s jurisdiction, but some human rights can also apply extraterritorially, under certain conditions. To answer the question of whether Boliva must respect the participatory rights of people residing in Chile, and vice versa, it needs to be established that the human right to water applies extraterritorially, and what that means exactly. In other words, does a state have an obligation to secure the enjoyment of the right to water by persons residing outside its territory, but within its jurisdiction and control? And if so, which local actors fall in casu within the jurisdiction and control of which State? And what kind of participatory rights do these extraterritorial actors enjoy?
It can be argued that Bolivia is obliged, inter alia, to allow the people in the Chilean communities of Baquedano and Sierra Gorda access to the Silala waters, and to allow them meaningful participation in the development of any plans regarding the exploitation and management of these waters. In fact, based on the extraterritorial application of the human right to water, Bolivia might even be under an obligation to maintain and repair the canals in the Silala as far as they are situated within Bolivia, at its own cost, for the benefit of these Chileans who are owed access to the waters.
All this is based on the extraterritorial application of the internationally recognized human right to water. In 2017, Roberta Greco suggested that:
[…] due to the external dimension of the human right to water, States should be prevented from adopting measures that can impair the enjoyment of adequate level of water for human and domestic consumption in other countries.
In casu, this meant the following:
A unilateral diversion of the [Silala] river by Bolivia which prevented the Chilean population from enjoying the right to water would run counter to the negative obligation to respect, that is to say to refrain from actively jeopardizing the enjoyment of the right to water abroad.
The extraterritorial application of the human right to water is supported by General Comment No. 15 of the Committee, already referred to above. Under the heading of ‘international obligations’, the Committee proclaimed the following:
To comply with their international obligations in relation to the right to water, States parties have to respect the enjoyment of the right in other countries. International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to water in other countries. Any activities undertaken within the State party’s jurisdiction should not deprive another country of the ability to realize the right to water for persons in its jurisdiction.
From the above, we can conclude that both Chile and Bolivia are under an obligation to provide individuals, including those situated on the other side of the border but within their jurisdiction and control, the opportunity to participate meaningfully in decision-making processes that potentially affect the enjoyment of their human right to water.
In 2011, the Special Rapporteur on the human right to water, Catarina de Albuquerque, further elaborated on the participatory aspect of the right to water. In her view,
Participation must be active, free, and meaningful. It must go beyond mere information-sharing and superficial consultation, and involve people in decision-making, providing real opportunities to influence the planning process. The organization of a truly participatory process is challenging. Different mechanisms and approaches will be required, including consultations with various stakeholders, public meetings, and hearings as well as the opportunity to submit written comments and feedback (paragraph 69).
Meaningful participation of local actors in the governance of the Silala thus requires that their participation be not merely ‘tolerated’ only to give the appearance that the two states are interested in what local actors have to say. Meaningful participation can indeed be ‘challenging’, as Catarina de Albuquerque noted. It requires that local actors can participate, even if their participation leads to complications, frustrations, and delays. In other words, their participation should be considered inherently valuable, not of instrumental value. Importantly, this right to meaningful participation is not restricted to stakeholders found within a jurisdiction; it also provides extraterritorial stakeholders – i.e., those situated in a neighbouring jurisdiction – with participatory rights.